Moral choices, moral truth, and the Eighth Amendment.

• Author: Allen, Ronald J.
• Position: Symposium: Law and Morality

What passes for normative scholarship in the law schools is often little more than making public the topography of the author's mind. I suppose this practice does have a certain appeal akin to the great national fascination with reality shows these days, (1) but it is unclear what other interests it serves than the obvious ones of getting tenure and being invited to conferences. Thus, my own scholarly efforts are directed toward propositions with truth value, and I try to leave the moralizing to others.

To be sure, there can be scholarship about normative questions that is motivated by pursuit of truth, such as many of the fine efforts of Michael Moore in laying out the landscape of normative discourse. (2) Those works, however, are not normative (whatever motivates them) in the sense pertinent today, and thus they are outside my consideration.

Normative scholarship involving the defense or critique of normative positions could serve purposes other than moralizing or autobiography, including facilitating inquiry into the underlying factual issues. For example, the great national debate on welfare might have focused attention on how the short-term desire to ameliorate woeful living conditions might have devastating long-term effects, (3) or how the desire to legitimate and express retributive feelings through the death penalty assumes accuracy and consistency in decision-making that, if not present, might have quite radical unintended effects. (4) And to be fair, debates in the legal literature may filter into the public's conscience in such a way as to have a positive educational effect, but I doubt it. The moral cast to much of our normative arguments is completely epiphenomenal. It does not matter to others what we think of welfare programs or the death penalty; what matters is their consequences. Or so, I suspect, the world at large, quite intelligently, believes. To the extent it serves useful purposes, one could entirely strip out all the moralizing references and just leave whatever underlying factual or analytical inquiry there is.

We certainly do not educate ourselves or advance knowledge with these normative debates. If we did, it would be commonplace for people to confess error in their views and revise them accordingly, but how often have you seen that occur? Or its blood cousin, a public recognition that analysis and investigation has forced the truth of a proposition upon a person that is repugnant to that individual? Virtually never.

The stability of personal preferences is especially true with respect to the particular subset of normative discourse pertinent to this Symposium--moral propositions. Indeed, what is prevalent is the opposite of reconsideration: a proposition, theory, or moral position is advanced and meets opposition, which in turn prompts its enthusiasts to modify its justifications rather than modify its contours, as, say, a scientist facing an anomaly might do. (5) Around my own law school, for example, it is commonplace to encounter yet another defense of the unitary executive, or originalism, or a particular view of separation of powers, often prefaced, in my view highly ironically, with statements to the effect that, "previous defenses of this view have not fared considerably well, so here is another one." What occurs to me is that perhaps the failures of the prior defenses might be explanatory of the truth or utility of the idea, but this notion seems not to be making much headway.

Rather than pursue knowledge, the objective of normative work in general, and moral reasoning in particular, seems much more directed at defending one's prior, subjective views. The game is to never give in no matter the evidence arrayed against you--come up with the clever response, create sophisticated arguments deflecting the latest criticism.

Scholarship of this sort is tedious, providing sufficient reason in and of itself, in my subjective opinion, to ban it from constitutional discourse. When the focus shifts from moral proselytizing generally to the Supreme Court doing it specifically, an additional problem arises. Normative views are largely, and probably exclusively, subjective creations of the minds of individuals, which is precisely why normative views are so immune to change. (6) I have no doubt that they form for reasons, including reasons that refer to facts in the world, but those reasons are just as surely the culmination of a person's experiences. This sort of thing is not going to lend itself to efficient rational discourse. If moral negotiation is to occur, it will need to be done in a sustained fashion over time, in a complex and chaotic environment--in a legislature, for example, or in citizen movements. Courts issuing edicts are about the last place one would predict that moralizing would be useful or effective. (7)

These points will seem to some as hopelessly naive philosophically and to others as virtually beside the point. The concern of philosophical naivety comes from the implicit suggestion that subjectivity can be eliminated, and maybe it cannot. But one can have more or less of it. When I am doing arithmetic sums, perhaps there is an element of subjectivity--after all, it is me choosing to do the sums--but I can choose to follow the rules or not. So, too, judges, or anyone else. The concern of irrelevance is that, like it or not, moral propositions exist (regardless of their truth value), many individuals see them as pertinent to deciding cases, and plainly in some cases requiring decision sources of law run out and invoking a moral...